Campus Due Process Litigation Tracker

Marshall v. Ohio University, 2015 U.S. Dist. LEXIS 155291 (S.D. Ohio Nov. 17, 2015)

School type: Public
State: Ohio
Federal Circuit: Sixth
Decision primarily favorable to: University
Stage of litigation: Motion to dismiss
Keywords: Due process, Erroneous outcome, Qualified Immunity, Selective enforcement, Title IX

The court granted the university’s motion to dismiss Plaintiff’s Title IX and due process claims.

This is a verbal sexual harassment case. Throughout the fall of 2014, Plaintiff sent his accuser, A.H., an increasingly persistent series of text messages expressing romantic and sexual interest in her and asking her out, despite her repeated declinations. Although she was polite but firm at first, she eventually — after a text message from Plaintiff stating “use that perfect ass so no one else has to” — filed a complaint with the university.

Following a hearing, Plaintiff was suspended for a semester and only allowed to request re-admission after completing certain tasks, such as an alcohol and drug assessment.

The court analyzed Plaintiff’s Title IX claim under the framework established by the Second Circuit in Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994), which found that Title IX claims arising from campus disciplinary proceedings can be analyzed under either an erroneous outcome or a selective enforcement theory.

For an erroneous outcome claim to survive a motion to dismiss, a plaintiff must plead facts sufficient to (1) cast “articulable doubt” on the outcome of the disciplinary proceedings and (2) suggest a connection between the erroneous outcome and gender bias. Here, the court found that Plaintiff had not plead facts sufficient to satisfy the first prong — he had admitted to sending A.H. the text messages that allegedly caused her substantial distress, and he had not contested that these messages violated Defendant’s sexual misconduct policy.

Although Plaintiff did allege some minor procedural irregularities in the adjudication of his case, “these purported irregularities simply fall short of the types of allegations that raise articulable doubts about the accuracy of an outcome, particularly given that Marshall does not allege the he was ‘innocent’ of a Policy violation or that he did not send the offending texts.”

On the selective enforcement analysis, the court held that Plaintiff had not plead facts suggesting that similarly situated female students were treated differently by the university. Although it was true that the overwhelming majority of accused students were male, of the two female students accused of sexual harassment, one was found responsible and one was not, and the one found responsible was also disciplined.

The court also held that even if the university had a pattern or practice of treating female students differently, Plaintiff had presented no evidence suggesting this was the result of gender bias:

At best, with regard to motive, the Amended Complaint alleges that OU has succumbed to pressure from the Department of Education to “crackdown” on perpetrators of sexual assault and sexual misconduct on university campuses. Even if true, cracking down on perpetrators is not the same as cracking down on men.

The court also dismissed Plaintiff’s due process claims, finding that he had not alleged he was denied notice or an opportunity to “fully respond” to his accuser’s allegations: “In short, Marshall does not allege facts that would, if true, establish that this administrative process used to suspend him was fundamentally unfair. For these reasons, Marshall’s procedural due process claims are dismissed.”